'Doing Time'.... After the Jury Acquits: Resolving the Post-Booker 'Acquitted Conduct' Sentencing Dilemma

45 Pages Posted: 21 Feb 2008 Last revised: 19 Sep 2008

See all articles by Peter Erlinder

Peter Erlinder

Mitchell Hamline School of Law

Date Written: Fall 2008


The sentencing revolution, occasioned by the Supreme Court's re-invigoration of the Sixth Amendment right to jury-found facts in Apprendi v. New Jersey and Blakely v. Washington, caused the Court to overturn mandatory Federal Sentencing Guidelines and to reconfigure the Guidelines as an advisory-only system in United States v. States v. Booker. For the past two years, post-Booker cases have revealed deep contradictions between three important, but directly competing, constitutional-policy imperatives, i.e. (a) defining the limits of Congress' power to establish uniform sentencing policy and procedures, to eliminate or reduce apparent disparities in sentencing between judges; (b) re-establishing the system of individuated, case-specific sentences by permitting broader judicial discretion in sentencing; and (c) protecting the Sixth Amendment right to jury-found facts as a bulwark against governmental over-reaching, in the context of judicial decision-making. Within the last several months, the Court decided Rita v. United States and Gall v. United States, which go a long way in sorting out the proper relationship between the first two policy imperatives above. However, the proper relationship between judicial discretion in sentencing and the Sixth Amendment right to jury-determined facts in sentencing, established in Apprendi and Blakely, is yet to be definitively addressed by the Court, post-Booker. Given the importance of Sixth Amendment jury fact-finding as a bulwark against judicial excess animating all members of the Court in Apprendi, Blakely and Booker, together with recent indications by members of the Court that the Sixth Amendment issues underlying Booker have yet to be resolved, indicate that further resolution of this issue will soon be on the Court's agenda, of necessity.

This article examines the unresolved, post-Booker contradiction between judicial discretion in sentencing and the Sixth Amendment right to jury-found facts, by considering the circumstance in which the contradiction is most plain, the judicial use of acquitted conduct to impose a sentence based on facts the jury has considered, and rejected, in an acquittal. The article advances the position that the minority view expressed in lower court cases, that acquitted conduct may never be used by a sentencing court in light of Apprendi and Blakely (at least with respect to facts related to proof of the elements of the acquitted offense), is essentially correct as a matter of principle, and simple logic. However, the broad discretion entrusted to the sentencing court by the remedial measures described in Booker, Rita and Gall, requires principled line-drawing, if the jury is not to be supplanted by judicial fact-finding in sentencing, in apparent contravention of the Apprendi/Blakely/Booker Sixth Amendment rationale.

Keywords: Acquitted Conduct, Sixth Amendment, Judicial Sentencing Discretion, Federal Sentencing Guidelines

Suggested Citation

Erlinder, Peter, 'Doing Time'.... After the Jury Acquits: Resolving the Post-Booker 'Acquitted Conduct' Sentencing Dilemma (Fall 2008). William Mitchell Legal Studies Research Paper No. 91, Available at SSRN: https://ssrn.com/abstract=1095406 or http://dx.doi.org/10.2139/ssrn.1095406

Peter Erlinder (Contact Author)

Mitchell Hamline School of Law ( email )

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St. Paul, MN 55105-3076
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651-290-6384 (Phone)

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